Tinkering with Lethal Injection

The last time the U.S. Supreme Court considered whether a method of execution violated the Eighth Amendment ban on cruel and unusual punishment, it af­firmed a Utah murderer’s sentence of death by firing squad. That was in 1878.

So the capital litigation bar was abuzz in September when the justices announced they would hear two condemned inmates’ Eighth Amendment challenge to Kentucky’s lethal injection procedures. Baze v. Rees, No. 07-5439. Oral arguments are scheduled for Jan. 7.

Ralph S. Baze and Thomas Clyde Bowling Jr. want the court to set standards for lethal injections to avoid “an unnecessary risk of pain and suffering.” They are not, however, seeking a categorical ban on lethal injections or the death penalty itself.

“This will not stop executions,” acknowledges the inmates’ lawyer, David M. Barron, a public defender from Frankfort, Ky.

Still, Baze appears to have done just that—at least for the time being. No executions are expected until after the justices decide the case, as lower courts, already swamped with lethal injection challenges, wait for guidance from the high court.

The cert grant and the ensuing de facto moratorium reminded Ohio State University law professor Douglas A. Berman of Justice Harry A. Blackmun’s famous 1994 dissent in a condemned inmate’s case, in which he announced he no longer could vote for the death penalty after two frustrating decades of puttering with it to ensure fairness.

“This is a relatively successful effort by defense counsel to ‘tinker with the machinery of death,’ ” says Berman, a sentencing specialist who teaches a course on the death penalty. “I think it’s just another way for defense counsel to gum it up.”

DECLINING EXECUTION

Executions have declined by nearly half in recent years, partly amid concerns that lethal injection sometimes causes inmates excruciating pain when the drugs used in the procedure are administered improperly or simply fail to work. After the court reinstated the death penalty in 1976, executions peaked at 98 in 1999 and then dropped steadily, tailing off to 53 in 2006, according to the Justice Department. Another 42 inmates had been executed as of Sept. 25, the day the court accepted Baze, according to the abolitionist Death Penalty Information Center in Washington, D.C.

Since granting cert, the justices have stayed a string of executions, though they stopped short of imposing a nationwide moratorium. In casting the lone vote to lift a stay for an Arkansas inmate, Justice Antonin Scalia on Oct. 16 argued that the delay “was based on the mistaken premise that our grant of certiorari in Baze v. Rees calls for the stay of every execution in which an individual raises an Eighth Amendment challenge to the lethal injection protocol.” Norris v. Jones, No. 07-A311.

In their cert petition, the Kentucky inmates estimate that at least half the nation’s 3,500 condemned prisoners have inundated the state and federal courts with challenges to the chemicals used in lethal injections. They urge the Supreme Court to set a single standard under the Eighth Amendment because the widely varying criteria used by different courts can mean the difference between life and death.

“So if we’re going to continue with lethal injection, we have to address those problems,” Barron says.

Baze was sentenced for the 1992 murders of a county sheriff and deputy whom he shot with a semiautomatic assault rifle when they arrived at his eastern Kentucky cabin to arrest him on felony warrants from Ohio. “You tell them that you have got the right man,” Baze told police after his arrest. “I’m the one that killed them son of a bitches.”

Bowling’s death sentence came in the 1990 fatal shootings of a young couple after his car crashed into theirs in a Lexington parking lot. The couple’s 2-year-old son was wounded.

The inmates brought their lethal injection challenge in 2005 separately from the appeals of their murder convictions, which prosecutors say they have exhausted. That leaves the lethal injection challenge as their last, best hope. Baze and Bowling say their case comes to the Supreme Court fully litigated and with a complete record, unlike the rushed challenges most inmates file at the last minute as execution looms.

The inmates depict a system in disarray that has only worsened since the Supreme Court held in 2006 that in­mates can use section 1983 of the 1871 Civil Rights Act to challenge the method of execution. Hill v. McDonough, 126 S. Ct. 2096.

CONSIDERING PAIN

Courts and other agencies within the same state sometimes have trouble keeping up with each other. In Tennessee, for example, one inmate was executed in 2006 under a procedure approved by the state supreme court and which the U.S. Supreme Court declined to consider.

Then, on Feb. 1, 2007, Gov. Phil Bredesen stayed all executions until corrections officials designed a new protocol. On May 9, a second inmate was executed under the revised procedure. But on Sept. 19, U.S. District Judge Aleta A. Trauger, ruling in Nashville in the case of a third inmate, held the new procedure violated the Eighth Amendment, once again effectively halting all executions in the Volunteer State.

The Kentucky inmates want the court to consider three questions. First, they want to know whether an Eighth Amendment violation entails merely “an un­necessary risk of pain and suffering,” as they maintain, or a “substantial risk of the wanton infliction of pain,” a paraphrase of the standard three U.S. Supreme Court justices urged in reinstating the death penalty. The Ken­tucky Supreme Court used the standard to approve the procedure.

Then they want to know whether an execution meth­od violates the amendment if less painful alternatives are readily available. Finally they aim at the three-drug cocktail common to almost all lethal injections and ask whether a violation occurs when other drugs pose less of a risk for pain.

(The justices without comment in October dropped a fourth issue asking whether substantive due process requires executioners to reverse the effects of the drugs should a stay issue after they’re injected.)

COMBINING CHEMICALS

Of the 38 states with the death penalty, 37 use lethal injection, as do the federal government and the military. Nebraska still uses the electric chair, itself the object of a state court review. Almost all the jurisdictions with lethal injection use varying combinations of sodium pentothal, an anesthetic that renders the prisoner unconscious; pancuronium bromide, which paralyzes the muscles and stops breathing; and potassium chloride, which stops the heart.

Most complaints center on the possibility that the sodium pentothal will wear off too quickly, leaving the inmate in intense pain but unable to cry out as paralysis sets in with the pancuronium bromide.

Defense lawyer Barron acknowledges that Kentucky and other states still can execute inmates by switching to other drugs should they lose in the Supreme Court. Kentucky prosecutors declined comment. Prosecutors dealing with similar challenges typically complain that any subsequent drug combination likely would inspire still more challenges, with no end in sight.

“If it were so easy just to swap and move on, the states already would have done it,” says Berman.

“The simple solution here is just to fix it,” Goldstein says. “But they’re locked in this moral fight, and neither side is willing to give an inch. While the capital defense community is blamed for many delays, this one is on the states.”

Nevertheless, the Kentucky case brings to the court for the first time in decades a feature common to nearly all executions. Other significant death penalty decisions in recent years largely have affected single classes of defendants, such as juveniles or the retarded.

But besides galvanizing defendants and their lawyers at least for the moment, opponents of the death penalty shouldn’t expect much more, says Goldstein.

“What this case ultimately is about is whether we care about pain,” he says. “It will only deal with the humanity of the death penalty. It doesn’t advance the goal of abolition one inch.”